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2013 DIGILAW 113 (CAL)

Manish Kumar v. Manish Sharma

2013-02-22

MRINAL KANTI CHAUDHURI

body2013
JUDGMENT : Mrinal Kanti Chaudhuri, J. 1. This is an application under Article 227 of the Constitution of India filed by the petitioner/accused praying for quashing/setting aside the judgment dated 20th October, 2006 passed by learned Additional District and Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Kolkata in Criminal Revision No. 110 of 2006 arising out of order dated 27th March, 2006 passed by the learned Metropolitan Magistrate, 14th Court, Kolkata in C. 1564/2004 u/s 138 of Negotiable Instrument Act. According to the petitioner, opposite party No. 1 filed petition of complaint u/s 138 of the N.I. Act in the Court of learned Chief Judicial Magistrate, Kolkata bearing Complaint Case No. 1564/2004 in its personal capacity, without being a representative of company Ankur Business Private Limited. The opposite party No. 1 disclosed himself as a staff and working for gain in Ankur Business Private Limited without disclosing that Ankur Business Private Limited is a company incorporated in Company's Act. No copy of resolution passed by the Board of Directors of Ankur Business Private Limited authorising him in filing the present complaint has been filed. As per terms and agreement between the parties three blank cheques without any date and amount were given to Ankur Business Private Limited on mutual understanding for security purpose without giving any scope for encashing any of the cheques without the consent of the petitioners. Further case of the petitioner is that all the correspondences and business transactions and activities were initiated at Muzaffarpur, State of Bihar. Therefore, there is no scope for entertaining any proceeding before the learned trial court. Further case is that the opposite party No. 1 filed an application for substitution by inserting the name of one Soumen Chakraborty being the representative of M/s. Ankur Business Private Limited instead and in place of opposite party No. 1. Opposite party further filed application for alteration of the copy of the cheques by placing new cheques instead and in place of existing cheques upon which the proceeding was initiated. Learned Trial Court vide its order dated 27th March, 2006 rejected the application filed by the petitioner challenging the maintainability of the proceeding. The cheques had been issued by M/s. Kalyani Agency to M/s. Ankur Business Private Limited, but there is no whisper about the name of the companies in the petition of complaint. Therefore, learned court should not have entertained the complaint. The cheques had been issued by M/s. Kalyani Agency to M/s. Ankur Business Private Limited, but there is no whisper about the name of the companies in the petition of complaint. Therefore, learned court should not have entertained the complaint. Further case is that there is no provision in the Code of Criminal Procedure to file any application of amendment, substitution, modification, correction or addition to the application upon which cognizance was taken by the learned Court to initiate the proceeding but learned Trial Court allowed the petition filed by the opposite party No. 1. Learned Court without taking into consideration the materials on record and provision of law rejected the application filed by the petitioner and allowed the application filed by the opposite party No. 1 by judgment dated 27th March, 2006. The petitioner preferred a Revisional Application under sections 397/ 399 of the Code of Criminal Procedure in the court of City Sessions Judge, Kolkata bearing No. 110 of 2006. But learned Revisional Court without taking into consideration of the materials on record and provision of law dismissed the revision application and thereby affirmed the order passed by learned Trial Court. Since Manish Sharma has no locus standi to initiate the proceeding on behalf of M/s. Ankur Business Private Limited, same should have been dismissed by the learned Trial Court. Therefore, the petitioner filed this application under Article 227 of Constitution praying for quashing or setting aside the order passed by learned Additional District and Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Kolkata in Criminal Revisional Case No. 110 of 2006 arising out of Order dated 27th March, 2006 passed by the learned Metropolitan Magistrate, 14th Court, Calcutta in C/1564 of 2004 u/s 138 of N.I. Act. 2. I have heard the submissions of learned Advocates appearing for the petitioner as well as learned Advocate appearing for the opposite party No. 1 and opposite party No. 2 being the State of West Bengal. 3. It is submitted by learned advocate for the petitioner that the complaint u/s 138 of N.I. Act was lodged by opposite party No. 1 Manish Sharma in his personal capacity and not in the name of the company i.e. M/s. Ankur Business Private Limited. According to him, both the court below overlooked this fact and the position of law. 3. It is submitted by learned advocate for the petitioner that the complaint u/s 138 of N.I. Act was lodged by opposite party No. 1 Manish Sharma in his personal capacity and not in the name of the company i.e. M/s. Ankur Business Private Limited. According to him, both the court below overlooked this fact and the position of law. Secondly, learned Advocate for the petitioner has submitted that the Trial Court has no jurisdiction to entertain the complaint u/s 138 Cr.P.C. because all the transactions took place at Muzaffarpur, Bihar. Both the courts below ignored the position of law. Thirdly, learned advocate for the petitioner has submitted that even the demand notice does not reveal the name of the company M/s. Ankur Business Private Limited and both the Courts below ignored the aforesaid facts and position of law. Therefore, the judgment passed by learned Revisional Court in Case No. 110 of 2006 arising out of Order dated 27th March, 2006 passed by learned Metropolitan Magistrate, 14th Court in Case No. C/1564 of 2004 should be quashed/set aside. 4. On the other hand, learned Advocate for the opposite party No. 1 has submitted that the Complaint u/s 138 of N.I. Act was lodged in the name of the company being represented by opposite party No. 1. It is further submitted that Trial Court has sufficient jurisdiction to entertain the complaint in view of the fact that cheque was presented to the bank situated within the territorial jurisdiction of Trial Court and the bank returned the cheque unpaid by the drawer bank. Demand notice was also issued within the territorial jurisdiction of the trial court. Therefore, Trial Court has ample jurisdiction to entertain the petition of complaint. It has been further submitted by the learned Advocate for the opposite party No. 1 that no amendment petition was ever filed. Only earlier employee i.e. opposite party No. 1 left the job and in his place another employee resumed the charge and permission was sought for to incorporate his name as representative of the company. Therefore, both the Courts below were justified in passing the impugned order. Learned advocate has, therefore, pleaded for dismissal of the petition filed by the petitioner under Article 227 of the Constitution. 5. Therefore, both the Courts below were justified in passing the impugned order. Learned advocate has, therefore, pleaded for dismissal of the petition filed by the petitioner under Article 227 of the Constitution. 5. I have heard the submissions of the learned advocates of both sides and perused the materials on record including interim orders passed by learned Courts below. At the first stage, we have to consider whether the company was properly represented to file the complaint u/s 138 of N.I. Act. From the complaint (Annexure P1) it appears in paragraph 1 that the petitioner/complainant is a staff and working for gain in Ankur Business Private Limited. The complainant Manish Sharma is, therefore, a staff of the Ankur Business Private Limited and paragraph 1 denotes that he has been authorized by the Ankur Business Private Limited to lodge the instant complaint. That the opposite party No. 1 was duly authorised by Ankur Business Private Limited to lodge the instant complaint is forthcoming in paragraph 1 of the petition of complaint lodged u/s 138 of N.I. Act. Although the cause title of the complaint does not reveal authorisation, the first paragraph of the complaint categorically specifies that he being the staff of the Ankur Business Private Limited was duly authorised to lodge the complaint. Learned Metropolitan Magistrate in the Order dated 27th March, 2006 has made an observation that on conjoint reading on the cause title and the paragraph 1 of the petition complaint it appears that the company Ankur Business Private Limited was the actual complainant to whom Manish Sharma was the authorised representative and the document filed on behalf of the complainant along this petition clearly reveal that Ankur Business Private Limited was the actual complainant. Learned Additional District and Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Kolkata while disposing of the Criminal Revision application has supported the observation of the learned Trial Court to the effect that the company Ankur Business Private Limited is the actual complainant and Manish Sharma was the authorised representative of the company. Both the Courts below have clearly observed that Ankur Business Private Limited is the actual complainant and Manish Sharma is the authorized representative of the company to lodge the complaint. Therefore, this Court under Article 227 of the Constitution cannot form a different view. 6. Both the Courts below have clearly observed that Ankur Business Private Limited is the actual complainant and Manish Sharma is the authorized representative of the company to lodge the complaint. Therefore, this Court under Article 227 of the Constitution cannot form a different view. 6. On a close and careful scrutiny on the petition (Annexure P3) it appears that a xerox copy of the document is wrongly tagged with the petition of complaint and, therefore, permission was sought for by the complainant to change the Annexure xerox copy which is wrongly annexed with the complaint for regularisation of the case record. So, this permission being a formal one for annexing the correct Annexure does not vitiate the maintainability of the case. Second ground of grievance raised by petitioner is that the Trial Court had no jurisdiction to entertain the substitution petition as Code of Criminal Procedure does not provide for any provision for substitution. Learned Trial Court in its order dated 27th March, 2006 has clearly observed that Ankur Business Private Limited was represented by Manish Sharma who lodged complaint. In other words, Manish Sharma was authorised to lodge complaint being a representative of the company. Since Manish Sharma left the job, permission was sought for to incorporate the name of one Soumen Chakraborty who is one of the Directors of the company. Learned Revisional Court below also found that when complaint was lodged by the authorised representative of company viz. Manish Sharma and when Manish Sharma left the job of the complainant company, the Court permitted the company to incorporate the name of Soumen Chakraborty one of its Directors as authorised representative of the company to perform all kinds of act on behalf of the company. Therefore, both the Court below has clearly observed that since Manish Sharma left the job, Soumen Chakraborty being one of the Directors of the company was permitted to be the authorised representative of the company to conduct the case including legal step like signing of Vakalatnama and other documents as would require from time to time. Learned Revisional Court below found no irregularity or illegality in the order dated 27.03.2006 passed by the learned Trial Court. Both the court below found that as Manish Sharma left the job, there is no illegality to incorporate the name of Soumen Chakraborty as authorised representative of the company. 7. Learned Revisional Court below found no irregularity or illegality in the order dated 27.03.2006 passed by the learned Trial Court. Both the court below found that as Manish Sharma left the job, there is no illegality to incorporate the name of Soumen Chakraborty as authorised representative of the company. 7. Since company is a juristic person it must be representative by its authorised representative to conduct the case. Since earlier authorized representative left the job, permission was sought for, to authorise one Soumen Chakraborty one of its Directors to represent the company. Therefore, the proper nomenclature of the petition is authorisation or authorisation petition not a substitution petition as embodied in Order 1 Rule 10 of Civil Procedure Code. The petition is a merely a change of authorisation and nothing else. I do not find any illegality or perversity in the order passed by learned Revisional Court. In other words, the permission accorded by learned Court to represent the company by Soumen Chakraborty does not cause any grave injustice or illegality or irregularity. 8. On the point of jurisdiction of the Court below, it is submitted by learned Advocate for the accused/petitioner that the entire business transaction between the parties took place in Muzaffarpur, Bihar which is beyond the jurisdiction of the learned Court below. But the materials on record clearly reveal that the cheques were presented to the State Bank of India, Bagri Market Branch which is within the jurisdiction of learned Court below and the cheques were dishonoured from the said bank. Subsequently demand notice was issued by Ankur Business Private Limited within the jurisdiction of the learned Court below. With regards to the jurisdiction Hon'ble Apex Court in a decision reported in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, AIR 1999 SC 3762 has clearly held that "the offence u/s 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. 9. 9. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence u/s 138 of the Code. In this context a reference to section 178(d) of the Code is useful. 10. In view of the fact that the presentation of the cheque to the bank and returning the cheque unpaid by the drawee bank and giving notice in writing to the drawer of the cheque demanding payment of the cheque amount taking place written the territorial jurisdiction of the learned court below, I have no hesitation to hold that the learned Court below has ample jurisdiction to entertain the petition of complaint u/s 138 of N.I. Act. Both the Court below clearly held that the Court below had territorial jurisdiction to entertain the petition of complaint. On a close and careful perusal of the case record including the judgment of the learned Court below I do not find that any grave injustice, irregularity, illegality or perversity has been caused by passing the impugned order by the learned Court below. This Court can exercise power under Article 227 of the Constitution in the capacity of the superintendence where grave injustice would be done unless this Court interferes. The power of this Court under Article 227 of the Constitution cannot be exercised to substitute its own judgment on the question of fact or law in place of what both the learned Trial Court and learned Revisional Court had formed opinion and passed judgment. 11. On a careful perusal of the materials on record this Court does not find that the conclusion arrived at by the learned Court below is based upon no evidence or no materials. In other words, this Court does not find any illegality or perversity in the impugned orders. 12. Therefore, the application filed by the petitioner/accused under Article 227 of the Constitution is devoid on any merit and, therefore, stands dismissed. 13. Interim order of stay granted earlier and extended from time to time stands vacated. No order as to costs. Let a photostat certified copy of the judgment and order, if applied for, be given to the parties after compliance of necessary formalities.